Future Generali India Insurance Co Ltd v. Ajay Kumar Jain & Ors

JUDGMENT

(ORAL)

¶1Impugned Award of 24th September, 2016 rendered by Motor Accident Claims Tribunal (henceforth referred to as the "Tribunal") grants compensation to respondents-Claimants on account of death of a businessman-Ashish S/o Rajender Kumar Jain, aged 34 years; a Senior Finance Officer-Abhishek S/o Ajay Kumar Jain, aged 28 years and an Executive-Nidish, son of Umesh Chand Jain, aged 28 years and a Sales Executive-Abhishek S/o Anand Jain, aged 29 years.

¶2Since these four appeals arise out of aforesaid common impugned Award, therefore, with the consent of learned counsel for the parties, these appeals have been heard together and are being decided by this common judgment.

¶3The factual background of this case, as noticed in the impugned Award, is as under:- "The facts common to all the petitions are like this. On 28.04.2012 Ashish Jain along with Nidish Jain, Abhishek Jain s/o Ajay Kumar Jain and Abhishek Jain s/o Sh. Anand Jain was going from Delhi to Guptidham, Gannaur, District Sonepat, Haryana in vehicle bearing registration no. DL-2CR-1397. Sh. Rajender Kumar, father of Sh. Nidish Jain, was also going to the same place in his vehicle bearing no. DL-7CH-4848. They reached at

11.00 p.m. in front of Tempo union bahalgarh, GT Road, Sonepat, Haryana. One truck bearing no. HR-63-8603 bearing driven by respondent no.1 came in a high speed and in a rash and negligent manner and hit against the car bearing registration no. DL.2CR-1397 as a result the occupants of the car namely Nidish Jain, Ashish Jain and Abhishek Jain s/o Ajay Kumar Jain sustained injuries and succumbed to the injuries in the Civil / General hospital, Sonepat Haryana. Sh. Abhishek Jain S/o Anand Jain sustained multiple grievous injuries who was referred by General Hospital, Sonepat to Trauma Hospital for further treatment. FIR No.13/12, U/s 279/337/304A IPC PS, Rai, District Sonepat, Haryana was registered against the respondent No.1. "

¶4To render the impugned Award, the Tribunal has relied upon evidence of Claimants/legal heirs of deceased and the other evidence on record. The compensation awarded by the Tribunal to Claimants with

interest @ 12% per annum in these appeals, is as under:- S. No. Name of deceased Compensation Awarded

¶1Ashish S/o Rajender Kumar Jain ₹15,86,608/-

¶2Abhishek S/o Ajay Kumar Jain ₹30,22,325/-

¶3Nidish S/o Umesh Chand Jain ₹21,53,900/-

¶4Abhishek S/o Anand Jain ₹15,73,491/-

¶5Despite service, the driver and owner of the insured vehicle have not contested the impugned Award before this Court.

¶6The challenge to impugned Award by learned counsel for appellant-Insurer is on the ground that the accident in question had taken place due to contributory negligence of Ashish (since deceased). Another ground taken by learned counsel for appellant-Insurer is that the compensation granted by the Tribunal under the "non-pecuniary heads" is exorbitant and it needs to be brought in tune with Supreme Court's Constitution Bench decision in National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680. So, it is submitted that the impugned Award deserves to be suitably modified.

¶7On the contrary, learned counsel for respondents-Claimants supports the impugned Award and submits that the compensation granted by the Tribunal is just and fair and so, these appeals deserve to be dismissed.

¶8Upon hearing and on perusal of impugned Award, evidence on record and the decision cited, I find that evidence of eye-witness-Rajender Kumar (PW-2) coupled with evidence of Dr. Saroj (R3W1) makes it clear that the accident in question took place as the truck was

changing lane and it came in front of the car and that is how the accident in question had taken place. It can be so gathered from the deposition of Dr. Saroj (R3W1) and perusal of Crime Scene Report (Ex.R3W1/1). So, the plea of contributory negligence put forth on behalf of appellant-Insurer is negated.

¶9As regards compensation granted by the Tribunal under the "non-pecuniary heads", I find that it needs to be brought in tune with Supreme Court's Constitution Bench decision in Pranay Sethi (supra). Accordingly, the compensation granted by the Tribunal to the legal heirs of deceased-Ashish S/o Rajender Kumar Jain under the head of "loss of love and affection" is disallowed. The compensation granted under the head "loss of estate" is reduced from ₹25,000/-to ₹15,000/-. Similarly, "funeral expenses" are also reduced from ₹25,000/-to ₹15,000/-and even compensation granted under the head "loss of consortium" is reduced from ₹1,00,000/-to ₹40,000/-. However, the compensation granted by the Tribunal under the head of "loss of dependency" is found to be fair and reasonable and is accordingly maintained. As such, the compensation payable to the legal heirs of deceased-Ashish S/o Rajender Kumar Jain is reassessed as under: -

¶10While maintaining the compensation granted by the Tribunal to the legal heirs of deceased-Abhishek S/o Ajay Jain under the head of "loss of Loss of dependency ₹13,36,608/-Loss of Consortium ₹40,000/-Loss of Estate ₹15,000/-Funeral Expenses ₹15,000/-Total ₹14,06,608/-

dependency", compensation granted by the Tribunal under the head of "loss of love and affection" is disallowed. The compensation granted under the head "loss of estate" is reduced from ₹50,000/-to ₹15,000/-. Similarly, "funeral expenses" are also reduced from ₹25,000/-to ₹15,000/-.As such, the compensation payable to the legal heirs of deceased-Abhishek S/o Ajay Kumar Jain is reassessed as under: -

¶11While upholding the compensation granted by the Tribunal to the legal heirs of deceased-Abhishek S/o Anand Jain under the head of "loss of dependency" and "medical expenses", compensation granted by the Tribunal under the head of "loss of love and affection" is disallowed. The compensation granted under the head "loss of estate" is reduced from ₹25,000/-to ₹15,000/-. Similarly, "funeral expenses" are also reduced from ₹25,000/-to ₹15,000/-and compensation granted under the head "loss of consortium" is reduced from ₹1,00,000/-to ₹40,000/-. As such, the compensation payable to the legal heirs of deceased-Abhishek S/o Anand Jain is reassessed as under: -

¶12The compensation granted by the Tribunal to the legal heirs of Loss of dependency ₹28,47,325/-Loss of Estate ₹15,000/-Funeral Expenses ₹15,000/-Total ₹28,77,325/-Loss of dependency ₹11,59,808/-Loss of Consortium ₹40,000/-Loss of Estate ₹15,000/-Funeral Expenses ₹15,000/-Medical expenses ₹1,63,683/-Total ₹13,93,491/-

deceased-Nidish S/o Umesh Chand Jain under the head of "loss of dependency" is justified but compensation granted by the Tribunal under the head of "loss of love and affection" is disallowed. The compensation granted under the head "loss of estate" is reduced from ₹50,000/-to ₹15,000/-. Similarly, "funeral expenses" are also reduced from ₹25,000/-to ₹15,000/-. As such, the compensation payable to the legal heirs of deceased-Nidish S/o Umesh Chand Jain is reassessed as under: -

¶13So far as interest on the awarded compensation is concerned, a Three Judge Bench of Supreme Court in a recent decision of Jagdish v. Mohan and Others, (2018) 4 SCC 571 has granted interest @ 9% per annum on the awarded compensation and so, respondents-Claimants are also entitled to interest @ 9% per annum. Accordingly, re-assessed compensation shall carry interest @ 9% per annum instead of 12% per annum as granted by the Tribunal. The modified compensation with interest @ 9% per annum be disbursed to respondents-Claimants by the Tribunal in the ratio and manner as indicated in the impugned Award. The recovery rights granted by the Tribunal to appellant-Insurer qua the owner and driver of the insured vehicle are maintained. Statutory deposit alongwith excess deposit, if any, be refunded to appellant-Insurer.

¶14Consequentially, compensation awarded by the Tribunal to legal heirs/Claimants of deceased-Ashish is reduced from ₹15,86,608/-to Loss of dependency ₹19,78,900/-Loss of Estate ₹15,000/-Funeral Expenses ₹15,000/-Total ₹20,08,900/-

₹14,06,608/- and to legal heirs of deceased-Abhishek S/o Ajay Kumar is reduced from ₹30,22,325/- to ₹28,77,325/- and to legal heirs of deceased-Nidish is reduced from ₹21,53,900/- to ₹20,08,900/- and to legal heirs of deceased-Abhishek S/o Anand Jain is reduced from ₹15,73,491/- to ₹13,93,491/-.

¶15With aforesaid directions, the above captioned four appeals and the applications are disposed of.

(SUNIL GAUR) JUDGE JULY 30, 2018 s

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: July 30, 2018 + MAC.APP. 979/2016 & CM 43600/2016 + MAC.APP. 981/2016 & CM 43672/2016 + MAC.APP. 982/2016 & CM 43709/2016 + MAC.APP. 985/2016 & CM 43878/2016 FUTURE GENERALI INDIA INSURANCE CO LTD....Appellant Through: Mr. Rajeev M. Roy, Advocate Versus UMESH CHAND JAIN & ORS RASHMIKA JAIN & ORS SWATI JAIN & ORS AJAY KUMAR JAIN & ORS .....Respondents Through: Mr. Sanjay Kumar Singh and Mr. Rakesh Satija, Advocates for respondents-Claimants CORAM: HON'BLE MR. JUSTICE SUNIL GAUR